Jammu & Kashmir High Court - Srinagar Bench

Ghulam Mohammad Mir & Ors vs Mr Shaleen Kabra & Ors on 26 July, 2021

                                                                                       Serial No. 518
                                                                                Daily Supplementary List-1

         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR


                                                                    CPSW No. 703/2018 in
                                                                       SWP No. 211/1999


Ghulam Mohammad Mir & Ors.
                                                                             ... Petitioner(s)
                                    Through: -
                         Mr R. A. Jan, Senior Advocate with
                            Mr Aswad Attar, Advocate.

                                              V/s
Mr Shaleen Kabra & Ors.
                                                                           ... Respondent(s)

Through: -

Mr B. A. Dar, Sr. AAG.

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge.

(ORDER) 26.07.2021 This Contempt Petition is filed by 85 Petitioners alleging

violation of Judgment dated 1st of December, 2009 passed by the Writ Court

in SWP No. 211/1999.

By Order dated 3rd of February, 2020, this Court observed as

under:

"The instant contempt petition is filed by 85 petitioners who allege violation of judgment dated 1st of December, 2009 passed in SWP No. 211/1999, operative paragraphs whereof read as under:

".....

Rule 5-AA referred to above squarely applies to the consolidated pay employees the way it applies to the daily rated workers. Therefore, 50% of continuous work as consolidated wage service has to be counted with regular service for the purpose of grant of in-situ promotion. The fixation, therefore, has to be made afresh because the earlier fixation made in the year 1995, where-under service of the petitioners has been reckoned with effect from 30.3.1973, has to be changed.

CPSW No. 703/2018

While fixing pay for grant of in-situ promotion, 50% of continuous service which as the petitioners have spent on consolidated basis shall be counted with regular service and accordingly first, second and third higher standard pay scale as shall be warranted under such fixation shall be allowed. The excess amount as a result of earlier fixation if found to have been drawn on re-fixation on aforesaid terms shall be adjusted.

Petition accordingly succeeds. Communication Nos. Home/HG/16/98 dated 1.1.1999 and ESTT/WP/Pay/43-45/99 dated 6.1.1999 shall be treated as non-est."

Mr R. A. Jan, the learned senior counsel, appearing on behalf of the petitioners, submits that the Writ Court allowed the petition of the petitioners while taking notice of all the pleas raised and the documents enclosed by the parties. He further submits that although in the memo of parties, only five employees were shown as petitioners in the writ petition, but the claim of all the 186 employees was made in the entire writ petition, more particularly in paragraph No.3 by stating that the petition is being filed for securing and protecting the interests of the members of the Auxiliary Police Force, holding the post of Constables numbering 186. In order to buttress his claim, the learned senior counsel has further invited the attention of this Court to the rejection of the claim of the petitioners qua implementation of the directions passed by this Court in the earlier round of litigation in SWP No. 3944-46/96 vide communication No. Home/HG/16/98 dated 1st of January, 1999 and No. Estt/WP/Pay/43-45/99 dated 6th of January, 1999 to contend that the said process was always initiated by the respondents for all the employees, including the petitioners herein this contempt petition. In this backdrop, it is pleaded that the rejection of the claim of the present petitioners by the Government is not only non-application of mind, but also misconceived and misdirected as well, thereby causing prejudice to the rights and interests of the petitioners who are equally entitled for the benefit which stands granted to by the respondents to five of the employees who were shown as petitioners in the memo of parties in the writ petition. It is also submitted that the Writ Court, in its judgment dated 1st of December, 2009, has directed that the communications dated 1st of January, 1999 and 6th of January, 1999 be treated as non-est and that there is no mention of the communications being treated as non- est only to the effect of the petitioners. It is also argued that since the said judgment has earned finality and, thus, the respondents cannot contend that the case of the petitioners does not fall within the contours of judgment dated 1st of December, 2009. The learned senior counsel has also substantiated the claim of the present petitioners by application of Rules 12 and 13 of the Writ Proceedings Rules, 1997 which deals with the procedure for filing common/ joint petitions. The learned senior counsel has also produced a communication bearing No. Estt/3647-50/19 dated 7th of May, 2019, issued by the Commandant SDRF 1st Bn, Srinagar and addressed to the Accountant General, J&K, Srinagar, whereby re-fixation has been made in favour CPSW No. 703/2018

of one Abdul Gani Sheikh, retired HC No. 1412/Auxiliary Police (now SDRF), 1st Bn. Srinagar for sanction of pension payment order.

Per Contra, Mr Dar, the learned Senior Additional Advocate General, representing the respondents, has vehemently argued that the instant contempt petition is not maintainable in view of the fact that the same has been filed by the incumbents who were not party petitioners in the writ petition. It is argued that the contempt Court cannot, by any stretch of imagination, held the present petitioners entitled for the benefit which was rejected to them by the writ Court. It is also pleaded that only five petitioners had filed the petition which was allowed by the Writ Court and, accordingly, the benefit stands granted to the said five only. It is also the case of the respondents that there is no whisper in the judgment of the Writ Court with regard to the present petitioners for the grant of relief and, therefore, the contempt is not only misconceived, but misdirected as well.

Heard the learned counsel for the parties, perused the pleadings on record and considered the matter.

During the course of hearing the arguments, a need was felt by this Court to summon the Writ Court records. Perusal of the Writ Court records reveals that in paragraph No.3 of the Writ petition, the petitioners had submitted that they belong to the Auxiliary Police Force and are filing the Writ petition for securing and protecting the interests of the members of the Auxiliary Police Force, holding the post of Constables numbering 186. It is also forthcoming from the Writ Court records that the petitioners had also given the details of all the 186 employees seeking the benefit and had placed the same on record alongside the writ petition as Annexure-"A". Even though the respondents rebutted the said contention of the petitioners in their reply filed before the Writ Court, but no finding was returned by the Writ Court on the said issue of common cause and, instead, the impugned communications were set aside as a whole and not to the effect of the petitioners in the Writ petition only. It being so, the relief granted by the Writ Court cannot be said to be with regard to the five petitioners in the Writ petition only, but same has to be applied to the case of all the employees of the then Auxiliary Police Force whose names figured in the list of employees placed on record alongside the writ petition as Annexure-"A", including the petitioners herein. Furthermore, the contention of the learned senior counsel representing the petitioners that out of 186 members of the Auxiliary Police Force, figuring in the Annexure-"A" of the writ petition, more than 80 employees have already got the benefit of the judgment of this Court to the exclusion of the petitioners, has also remained unrebutted by the other side.

In the above backdrop, the objection of the respondents that the instant contempt petition is not maintainable on the ground that CPSW No. 703/2018

the petitioners in the present contempt petition were not the petitioners is unsustainable and, as such, rejected.

Let the respondents file compliance of judgment dated 1st of December, 2009 passed in SWP No. 211/1999 qua the present petitioners by or before the next date of hearing, failing which appropriate orders shall follow on the next date of hearing.

List on 24.2.2020.

Registry to forthwith provide a copy of this order to Mr B. A. Dar, the learned Senior Additional Advocate General, for compliance."

The Respondents were, thus granted time to submit the

compliance of the judgment dated 1st of December, 2009 till 24th of February,

2020, which time, on request of the counsel for the Respondents, was further

extended on 10th of August, 2020; 28th of August, 2020; 20th of November,

2020; 25th of November, 2020; 9th of December, 2020; and 28th of December,

2020.

Today, when the matter was taken up for consideration, it

transpired that the needful, till date, has not been done by the Respondents

despite availing umpteen opportunities.

When asked, Mr B. A. Dar, the learned Senior Additional

Advocate General, invited the attention of the Court to the Status Report filed

by him on behalf of the Respondents on 22nd of March, 2021 in relation to

Order of this Court dated 25th of November, 2020, wherein at Paragraph Nos.

3 to 5, it has been stated as under:

3. That it is respectfully submitted by the answering respondents that in due compliance of the judgment the matter was taken up with the Department of Law, Justice and Parliamentary Affairs and Finance Department. The opinion of the Finance Department was conveyed to the Commandant General, Home Guard/ CPSW No. 703/2018

CD and SDRF J&K for taking further appropriate action in the matter. The Commandant General, Home Guard/ CD and SDRF J&K in terms of his communication dated 20-11-2017 intimated that the Directorate issued instructions for implementation of the direction of the Hon'ble High Court in respect of the petitioners.

4. That it is respectfully submitted by the answering respondents on the basis of the factual details of the case and the record available in the Home Department, the claim of (185) persons mentioned in the Home Guard communication dated 20-11-2017 including (85) applicants of contempt petition was not found legally admissible and accordingly rejected by Government vide order No. 498 of 2019 dated 10.05.2019.

5. That it is further submitted by the answering respondents that the fact that benefit has already been accorded to the 74 employees other than the 05 petitioners is being ascertained from the Commandant General, Home Guard as the Home Department is required to examine all the details with regard to the said issue so that an informed decision can be taken in the matter. It is further submitted that because of the disruption of the offices due to COVID-19 processing of the matter could not be taken place expeditiously. That on receipt of all the requisite details, the matter will be further examined in the Home Department in consultation with the Law Department."

Having heard the learned counsel for the parties and after going

through the pleadings on record, what emerges is that the judgment passed by

the Writ Court way back on 1st of December, 2009 has remained

unimplemented despite assurances and undertakings extended by the

Respondents before the Court from time to time. The Respondents, on one

pretext or the other, are delaying implementation of the judgment aforesaid

inasmuch as no effective steps have been taken by them to ensure

implementation of the judgment passed by the Court.

In the above background, there is no other option for the Court,

but to seek personal appearance of the officer(s) concerned. Accordingly, let

Respondent No.1-Principal Secretary to Government of the Union Territory CPSW No. 703/2018

of Jammu and Kashmir, Home Department; and Respondent No.3-DGP, State

Disaster Response Force (SDRF)/ Auxiliary Police, Jammu/ Srinagar, appear

before the Court on the next date of hearing so as to explain as to why

contempt proceedings be not initiated against them for non-implementation of

the judgment passed by the Court in the year 2009.

List on 12th of August, 2021 in the 'Daily Supplementary Cause

List'.

In the event compliance is submitted before the Court by the next

date of hearing, the Officers need not to appear on the next date of hearing.